SZJGS v Minister for Immigration and Citizenship

[2007] FCA 284

FEDERAL COURT OF AUSTRALIA

SZJGS v Minister for Immigration and Citizenship [2007] FCA 284

SZJGS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2457 OF 2006

MARSHALL J
6 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2457 OF 2006

BETWEEN:

SZJGS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	6 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read Minister for Immigration and Citizenship.

2.The application for leave to appeal is dismissed.

3.The applicant pay the first respondent’s costs of the application, fixed at $680.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2457 OF 2006

BETWEEN:

SZJGS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	6 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applied for leave to appeal from a judgment of a Federal Magistrate published on 4 December 2006. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal to refuse to grant a protection visa to the applicant. 

2. The applicant is a citizen of the People’s Republic of China who arrived in Australia on 23 February 2006. On 20 March 2006, the applicant lodged an application for a protection visa with what is now known as the Department of Immigration and Citizenship. On 7 April 2006, a delegate of the then first respondent refused the application for a protection visa and on 9 May 2006 the Tribunal received the applicant’s application for a review of that decision. On 30 May 2006, the Tribunal wrote to the applicant advising that it had considered all the material before it but was unable to make a decision in his favour on this information alone and inviting him to attend a hearing to be held on 30 June 2006. The applicant returned the Response to Hearing Invitation, indicating that he wished to attend the hearing. The applicant attended the hearing. He was assisted by an accredited interpreter.

3. Before the Tribunal, the applicant claimed to fear persecution because of his practice of Falun Gong in China. The applicant claimed that he joined Falun Gong as a result of his business associate being a Falun Gong practitioner and that he assisted his associate to become a leader of Falun Gong in his city. The applicant claimed he was stopped by police while carrying promotional material and subsequently detained for four days then released with the help of his business partner. The applicant claimed his business partner was arrested and sentenced to two years’ imprisonment. The applicant claimed that he no longer practised Falun Gong and would be imprisoned because authorities would mistakenly impute him to be a Falun Gong practitioner because of previous involvement.

   THE DECISION OF THE TRIBUNAL

4. The Tribunal was not satisfied the applicant was a genuine Falun Gong practitioner, as he was unable to provide details or explain his understanding of Falun Gong. Further, the applicant refused to present evidence about his practice of Falun Gong. The Tribunal said that the claims of the applicant were inconsistent with his evidence that he did not know when Falun Gong became illegal in China and with his evidence that he practised in public parks without difficulty from 2001 until 2004, when he should have been aware that the practice became illegal in 1999, according to independent country information. The Tribunal was not satisfied the applicant was telling the truth.  It did not accept that either the applicant or his business associate was arrested. The Tribunal did not accept that there was a real chance the applicant would practise Falun Gong or that the Chinese authorities would perceive him to be a Falun Gong practitioner and persecute him, on that basis, if he returned to China.

5. The Tribunal then considered the claim that the applicant no longer practised Falun Gong, but is now a Buddhist. The Tribunal found that there was no evidence that he would be persecuted in China because of his religion and that he had not made any claims in that regard.

   GROUNDS BEFORE THE FEDERAL MAGISTRATE

6. By amended application filed in the Federal Magistrates Court on 27 November 2006, the applicant sought judicial review of the decision of the Tribunal. He claimed the Tribunal failed to carry out its statutory duty, in particular acting in breach of s 424A of the Migration Act1958 (Cth) by utilising information given by the applicant in his protection visa application. The applicant further claimed that the Tribunal relied on irrelevant material, as the country information relied upon was out of date, failed to consider the application according to s 91R of the Act, and failed to consider his claims because of bias against him. He challenged its ‘satisfaction’ that he was not a refugee. He said the decision was not based on rational or logical foundations.

   THE JUDGMENT OF THE FEDERAL MAGISTRATE

7. The Federal Magistrate found that the applicant sought impermissible merits review with no proper particulars being provided for grounds relied on in the amended application. His Honour was not satisfied that the applicant raised an arguable case for the relief claimed and dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). As the judgment below is interlocutory, the applicant requires the leave of this Court to appeal.

   APPLICATION FOR LEAVE TO APPEAL

8. In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal in which he claims the following:

   ‘1. The Tribunal failed to carry out its statutory duty. The Tribunal failed to consider my application according to S424A of the Migration Act 1958.

   2. The Tribunal failed to consider my application according to S91R of the Migration Act 1958. The Tribunal failed to consider my claims.

   3. Federal Magistrates court did not even consider my application despite the above mentioned jurisdictional errors.’

9. At the hearing of the application for leave to appeal, I invited the applicant to explain to me how each of the grounds alleged in his application before the Court could be made out. He was unable to offer any assistance in that regard. Having read the reasons for decision of the Tribunal, I am not satisfied that it committed any jurisdictional error. No point would be served in granting the applicant leave to appeal from the judgment below when any appeal would have no prospect of success and where no substantial injustice would arise due to the Tribunal’s decision being free from jurisdictional error.

10. The application is dismissed with costs, fixed at $680.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        6 March 2007

The Applicant appeared in person.
Counsel for the First Respondent:	Ms S Zaruki
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	6 March 2007
Date of Judgment:	6 March 2007